I strongly disagree with the Eighth Circuit's Confrontation Clause ruling in its recent opinion in United States v. Honken, 2008 WL 4181150 (8th Cir. 2008). The facts of Honken are complicated, but basically the prosecution's theory of the case was that, in 1993, after being indicted on federal drug trafficking charges, Dustin Lee Honken and his girlfriend, Angela Johnson, kidnapped and murdered a federal witness, the witness's girlfriend, and the girlfriend's two young daughters. For years, however, authorities were not able to locate the bodies of these victims. That all changed in 2000, when a federal grand jury indicted Johnson.

While in the Benton County Jail, Johnson became acquainted with Robert McNeese, a federal prisoner serving a life sentence. Johnson and McNeese discussed Johnson's case, and, as a ruse, McNeese told Johnson she could escape responsibility for the murders if McNeese could arrange to have another inmate who was already serving a life sentence falsely claim responsibility for murdering the five victims. McNeese told Johnson that in order to make the confession believable, the other inmate would need to be able to furnish proof of his involvement by leading authorities to the victims' bodies. Johnson prepared and provided McNeese with maps and notes describing the locations where the five bodies were buried, whereupon McNeese turned the maps and notes over to law enforcement. Using the maps Johnson drew, officers discovered the bodies, which were buried in a single hole located in a wooded area.

Honken was subsequently charged with the murders, and he unsuccessfully objected to the prosecution's introduction of Johnson's maps into evidence. On appeal, the Eighth Circuit affirmed the trial court's decision to admit the maps. It found that the maps were admissible as a statement against interest under Federal Rule of Evidence 804(b)(3), which allows for the admission of a "statement" of an unavailable declarant if the statement was:

"at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

In so finding, the Eighth Circuit first correctly found that Johnson was "unavailable" because she invoked her Fifth Amendment right not to testify. The court then rejected Honken's argument that the maps were not "statements against Johnson's penal interest because she drew them in the hopes of aiding her penal interest." Instead, it found that:

"Johnson's maps clearly subjected her to criminal liability. By admitting she knew where the victims' bodies were buried, Johnson implicated herself in the murders, or at least in the subsequent cover-up of the murders. No reasonable person would make such a statement unless she believed it to be true. The fact Johnson harbored the delusion that a complete stranger would take the blame for the five murders does not make the maps any less inculpatory."

The Eighth Circuit then concluded that the admission of the maps did not violate Johnson's rights under the Confrontation Clause. Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), courts have held that the Confrontation Clause is violated when hearsay is "testimonial admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. And while it is difficult to pin down an exact definition of "testimonial" statements, most courts have determined that they are statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Thus, because Honken was not able to cross-examine Johnson, admission of the maps would have violated Honken's Confrontation Clause rights if the maps were "testimonial." So, why did the court find that the maps were non-testimonial? According to the Eighth Circuit:

"McNeese most likely anticipated Johnson's maps would be used at a later trial. However, we conclude the proper focus is on Johnson's expectations as the declarant, not on McNeese's expectations as the recipient of the information. Johnson did not draw the maps with the expectation they would be used against Honken at trial, nor did she draw the maps 'for the purpose of establishing or proving some fact' against Honken. Johnson drew the maps for the express purpose of recruiting another inmate to confess to the murders so she and Honken could go free....We simply cannot conclude Johnson made a 'testimonial' statement against Honken without the faintest notion she was doing so."

It seems to me that the court was saying one of two things, either of which would be incorrect. First, the Eighth Circuit might have been saying that while Johnson was aware that the maps might be available for use at a later trial, she was unaware that the maps might be available for use at a later trial against Honken. Under Crawford and its progeny, a statement is "testimonial" if it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial;" there is no requirement that than an objective person in the declarant's position would reasonably believe that her statement would be available for use at a later trial against any particular individual. Thus, if the Eighth Circuit's decision was based upon such line drawing, it was incorrect.

But maybe, the Eighth Circuit was instead saying that an objective person in Johnson's position would not have reasonably believed that her maps would be available for use at any later trial. In that case, the Eighth Circuit would have applied the correct legal standard, but I would strongly disagree with its conclusion. According to the court, Johnson drew the maps so that the murders could be pinned on another inmate. A reasonable person in Johnson's shoes thus absolutely should have understood (at least as far as the courts infer that most people have a working knowledge of how the legal system works) that the maps could have been available for use at a later trial, albeit a trial against the other inmate.